Want To Shake Down Cloud Music & Video Providers? Patent For Sale!

from the hop-to-it dept

When we talk about patent trolls, what many people don't recognize is how often many of these patents get passed around to and from different entities, often until someone sees an opportunity to force lots of companies into licenses, or to sue them. Failing that, many companies often feel compelled to buy ridiculously broad patents, just to keep themselves from being sued. Whole businesses have been built up around the practice of basically selling these patents, in which they more or less are selling people a right to shake down others. Except that kind of stuff rarely is talked about in the public. Michael Robertson, however, passed along an example of one that we thought might be worth exploring. An operation called Capital Legal Group is going around "shopping" an excessively broad "cloud storage patent" for sale, highlighting that it's already identified three infringers, with more expected soon.

I'm sure they reached out to Roberston, since he runs a cloud content service, though they certainly don't indicate if they think he's infringing directly. The full pitch is embedded below, but here are some highlights:

To date, we have identified three infringing systems. Claim charts are
available upon execution of a confidentiality agreement. Because the market is
growing, we anticipate more and more infringing systems to come on to the market
regularly.

Translation: here's a chance to shake down lots of players, because it's a broad "cloud storage patent" that is going to cover all sorts of stuff that companies are going to be doing because it's basically describing how cloud services work. Of course, in a rational world, this would be evidence that the patent in question should never have been granted, as it was clearly a next obvious step in the advancement of the technology, rather than any sort of breakthrough that needed protection.

The patented technology is applicable to storing video, audio (e.g., music) and
other digital objects in cloud storage. Thus, the patented technology is applicable to
remote digital video recording (DVR) services and other such services wherein the user
selects content (e.g., television show, radio shows, etc.) to record (at some point in the
future) and the system records the selected content on a server which is accessible by
the user, for example, via the Internet or a wireless network.

As indicated in the Wall Street Journal, "the global market for 'the cloud' is
expected to soar in the next several years, but cloud computing isn't just for big
businesses; consumers use it regularly too, for storage and productivity." As the need
for audio and video storage increases, new players, such as Comcast, are now entering
the market. Consequently, the offered portfolio provides a fantastic opportunity for
significant revenue and/or increased market share to any buyer.

In other words, this patent is hella broad, and is going to cover something quite obvious (DVRs, but "on the internet"). That courts have started (finally) becoming suspect of patents that take something already known (a DVR) and just basically add "on the internet" to it, isn't mentioned in the sales pitch, of course. Later, the pitch document again highlights how ridiculously broad the patent is, by noting that it counts towards content accessed from any device, and this it's "critical to the future of audio and video distribution." This is, simply, nuts. What's described in the patent is no breakthrough or revolutionary step forward. It's just the basics for how a reasonable engineer would build such a service. Put 100 engineers in the room and ask them to build a remote DVR, and I bet most of them would "accidentally" infringe on this patent. That's not about copying the idea or "stealing" the idea. It's about a broad idea that is obvious, getting locked up in a patent so someone can cash in for not doing anything.

Oh yeah, did we mention the current patent holder isn't doing anything with it? Right:

The patents are not licensed and have never been litigated. The patents are not
encumbered and the seller does not need a license back.

No license back means for all the talk of how critical and important this is, the "inventors" (and I use that word loosely) did absolutely nothing with it. And if it's never been licensed or litigated, that means there's no evidence that whatever's in the patent has ever even been seen by anyone doing work in this field, let alone used to further the market. Thus, the idea that these patents are "critical" to the market is flat out laughable.

The patent itself is 7,921,221, on a "Method and apparatus for obtaining digital objects in a communication network." Yeah, seriously. Surely something like that must have been filed back in the dark ages, right? Nope. 2008. Because back then, no one knew how to obtain digital objects in a communications network. This isn't innovation, this is a lottery ticket to shake down the companies who actually do innovate.

Uggg, how many people are going to infringe on my "System and Method for Attempting to Extort Money from Software Companies" patent? I really should go after them, but I guess I'll wait another decade before shaking them down.

I also have a completely different patent that may also work, "System and Method for Attempting to Extort Money from Software Companies on the Internet" =P

America Invents Act

Under the old system, it was necessary to actually invent something, once upon a time even to have a working model. The new system is far more efficient and greatly streamlines the entire process of acquiring large numbers of patents so that they can be enforced. The emphasis on quantity (which is measurable) evidences the superiority of the first to file system. The intent of the accumulator of patents to enforce those patents, results in useful licensing commerce between companies who hoard worthless patents and companies who innovate and therefore is good for the economy.

It's too bad that copyright still requires you to actually have something other than a description and hand waving. Maybe copyright should be changed from "fixed in tangible form" to "fixed as an idea in the imagination" -- even if you never bother to get it fixed into tangible form.

Don't follow this line of reasoning...

"Of course, in a rational world, this would be evidence that the patent in question should never have been granted, as it was clearly a next obvious step in the advancement of the technology, rather than any sort of breakthrough that needed protection."

A patent shouldn't be granted if the invention later becomes commercially successful? So ... you should only get patent protection for things that nobody wants? That'd be sort of a weird system.

It's odd that you quoted the title of the application, and never examined or discussed any of the claims, but nevertheless concluded that the patent is too broad and should have been found obvious. On what basis? What prior art? Where do find all of these elements?

If you read claim one, it's narrower than this report suggests. This is not a patent to "the cloud." It looks like a relatively specific method of finding and storing content for future playback without requesting it from the content provider, and there's a lot of moving parts here.

This is a classic design-around patent, I'm not surprised they've never found a licensor and now can't find a buyer. It seems, at a glance, to be trivial to design a system that doesn't infringing this.

Re: Don't follow this line of reasoning...

This is a classic design-around patent, I'm not surprised they've never found a licensor and now can't find a buyer. It seems, at a glance, to be trivial to design a system that doesn't infringing this.

Perhaps it's simple to design around this specific patent (if you are even aware of its existence when you're designing your system), but what of all the other equally broad patents? The system as it is entails that there are simply too many patents for an inventor to check them all before actually inventing (never mind the fact that inventing something independently should be a defense against patent claims).

Re: Re: Re:

Hopefully this is a sting operation by the government.
They just sit back and quietly take names......
and in 3 or 4 years round all the bastages up and drop them off about 1000 miles from shore.
That would go along way towards cleaning this mess up.

I know that, here, if something is complicated and takes the average person more than ten seconds to understand, it is stupid/ridiculous/broken/etc.

But a hand-waving dismissal for lack of novelty without even a cursory glance at the claims? "Oops, well, doing a claim chart or constructing an actual obviousness argument would take more than five minutes, therefore I can confidently declare this patent is dumb without looking at it."

Does anybody here actually know how to draw up a claim construction and a claim chart? If you don't, learning how is instructive - for both patent supporters and detractors. You may learn that the system, while flawed, is a little more rigorous and not quite as stupid as you think (though not as rigorous or smart as you would like).

"The patent itself is 7,921,221, on a "Method and apparatus for obtaining digital objects in a communication network." Yeah, seriously. Surely something like that must have been filed back in the dark ages, right? Nope. 2008. Because back then, no one knew how to obtain digital objects in a communications network. This isn't innovation, this is a lottery ticket to shake down the companies who actually do innovate."

Given the lack of any evidence proferred as support for the above quote, one must assume the patent has not been read in detail sufficient to understand the claimed invention and how it differs from the prior art.

Re: Don't follow this line of reasoning...

You forced me to go look at the patent. Can you tell me concisely what they are describing and what is novel about it? What would an infringing system look like? And what would a not infringing system look like? Describe one that designs around it yet does the same thing it is trying to accomplish?

I found reading the patent tedious. The system sounds impractically complex. If it actually is a useful invention, why did they not implement it? How will they know if somebody implemented a system that infringes this?

I see this a bit differently from the author of this article. The ones selling this know that this patent is worthless and are trying to dress it up as a scam to make a quick buck.

Re: Re:

What exactly is the claimed invention?

The claimed invention, exactly, is what is described in the patent claims. You can go read them. It is limited by how the terms are defined in the body of the patent, and the prosecution history of the patent. I can summarize it for you, but that won't be the claimed invention exactly. That will be a summary with certain details left out that might or might not be important.

If you willfully ignore the details, you can jump to all sorts of unsupportable conclusions about the breadth of the patent and what constitutes prior art.

How is it different from prior art? What is novel about it?

What prior art is that? You can't just say "prior art" in general. Identify some prior art that's close and then match up each and every element in the claims to elements in the prior art, and then you can answer this question. If you find that you can do this effectively, you have a good argument that this invention is indeed anticipated by prior art.

Also, if you do that, you should feel free to file for ex parte reexamination of the patent. Did you know that anyone who raises a significant question of patentability can do that? It costs some money, a couple of thousand dollars, but if you're seriously cheesed off by a patent I'm sure you can get a kickstarter together with fellow patent-busters. (In fact, this might be an interesting business model - crowdfunded patent-busting.)

What always amuses me here is that for the decade-plus of whining about the patent system, the Techdirt community has, to my knowledge, never once assembled the $2500 and detailed analysis to have a single patent invalidated through ex parte reexamination. Sure, invalidating a single patent would be a drop in the bucket, but I think it would make a statement if y'all went out and started actually working to fight bad patents instead of making unilateral declarations into the ether about how this patent is bogus or that patent is non-novel or whatever. Imagine if you (had) invalidated one of the Billion Dollar Apple Patents. You'd be Internet folk heroes.

The stuff in this patent uses common techniques that came before it. Transferring and caching files is common techniques. Ever heard of design patterns? Software patents are stupid.

Yes, but transferring and caching files are an almost incidental part of what's claimed.

If you took ten minutes to read the first claim and a little of the description, you'd find out that the claimed invention is actually of the sort that Techdirtophiles would normally love. The basic idea behind the invention, as I read it, is a way to avoid copyright restrictions and still get free content over the Internet. A user would specify to a service that they want some particular content, say an MP3 of Toxic by Britney Spears, and then the service would monitor existing legal streams of information (e.g., Internet radio stations), then record the stream and send it to you later, or in real-time. (Actually building and using the invention may be limited by cases like the Cablevision case from a copyright perspective, limiting the practical utility of the invention).

Note that my description of the invention there is not THE description of the invention. The invention is what is described in the claims. So, if you say "BUT THAT'S JUST LIKE WHATCHAHOOZIT.COM THAT CAME OUT IN 1998" that's wonderful, but you haven't invalidated the patent just yet. Build up a claim construction and a claim chart, and then you can have a reasonably-informed discussion.

Yes, elements of the claimed invention certainly existed before. Patented inventions are often novel combinations of non-novel things. You single out software patents for derision here, but why not levy your criticism against all patents for the same reason? After all, any kind of physical (e.g., mechanical, civil, electrical, chemical) engineering is just applied physics, and physics is math, and math is natural laws, so therefore everything is just a law of nature and nothing is patentable, right?

NCTU @ Taiwan feeding patent trolls

This platform connects the production and demand of patents. It encompasses research results from 35 univirsities in Taiwan and more than a thousand granted patents, Following the successful sales of tens of millions (NTD) worth of optoelectronics patents in June, there will be 400 ICT patents for sale in Oct. ...

I personally feel ashamed of such behaviour from my colleagues but I am sure there are academicians (! or educators?!@#$$$$) who would happily claim "All your base are belong to us, hahaha! You can keep your stupid patent system and I Can Has Cheezburger, too."

Re: Re: Don't follow this line of reasoning...

I don't enough time to read and understand the patent completely, but at a glance it appears they are describing a system for passively DVR'ing songs played on Internet radio without having to even know that a given Internet radio channel exists.

E.g., I type into my iPhone app, "For Whom The Bell Tolls"/"Metallica" and hit "Record" and the next time that song is played on any Internet radio channel that the app subscribes to, it captures and records it for later playback.

As for design around, .... is that a serious question? Each one of these steps contains a dozen additional limitations beyond the step itself. You need only design around just one of these to avoid infringing the patent.

What's novel about it? I'm not aware of anybody with a product all of these steps in this particular arrangement, including whoever wrote this patent.

Novelty isn't the issue. Everything is novel at least once. The question is whether this is obvious vis-a-vis the prior art. That means asking whether there is prior art containing all of these elements, in this order, and some suggestion to combine.

The provisional was filed in early, early 2007, which means this thing was probably dreamed up some time in mid-2006. That's right about when Amazon launched their first cloud platform, and that predates any major open source cloud platform by a good two years.

Seems reasonably novel. And apparently unmarketable, since they haven't found a buyer in six years. Probably because anybody who does this will get sued into oblivion by the content cartels.